Staying Fair Work Commission proceedings

The principles which are used by the Fair Work Commission when determining whether to stay proceedings, for example pending an appeal of an issue, are evident in this passage from a recent case.

“Power to stay proceedings and relevant principles

[33] Section 589 of the FW Act provides that the Commission may make decisions as to

how, when and where a matter is to be dealt with.

[34] It is well established that the power conferred by s.589 of the FW Act is sufficiently

broad to encompass a decision that the proceedings be adjourned pending the outcome of related

proceedings elsewhere, including the Federal Court.14

[35] The decision to grant a stay is a matter of discretion, which discretion is to be exercised

on a case-by-case basis, having regard to the statutory framework and all the relevant

circumstances before the Commission.15

[36] The statutory framework includes the obligation on the Commission to perform its

functions and exercise its powers in a manner that is fair, just and quick and which takes into

account equity, good conscience and the merits of the matter.16

[37] A party is entitled to have their matters arbitrated in the ordinary course of the procedure

and business of the Commission. A stay application requires justification on proper grounds

and an adjournment should not be lightly entertained.17

[38] The issue of whether to exercise the discretion to make a decision to stay/adjourn

proceedings before the Commission until after judgment is delivered in another jurisdiction was

considered in Bowker where Deputy President Gostencnik stated18:

[5] In considering whether to exercise the discretion to make a decision with the

effect that the applications would not be dealt with until after judgement is delivered in

the Federal Court proceeding, it seems to me appropriate that I have regard to the

relevant considerations that are taken into account by the courts in considering

applications of this kind. Conveniently, in Sterling Pharmaceuticals Pty Limited v The

[2023] FWC 1136


Boots Company (Australia) Pty Limited, a case concerning an application to stay a

proceeding because another proceeding involving related entities operating with a

degree a common management and control, were involved in earlier commenced

proceeding in New Zealand, Lockhart J set out a number of considerations his Honour

said were relevant to the question whether a stay ought be granted:

“In my opinion relevant consideration is to be taken into account in the present case

includes the following:

  • Which proceeding was commenced first.
  • Whether the termination of one proceeding is likely to have a material effect

on the other.

  • The public interest.
  • The undesirability of two courts competing to see which of them determines

common facts first.

  • Consideration of circumstances relating to witnesses.
  • Whether work done on pleadings, particulars, discovery, interrogatories and

preparation might be wasted.

  • The undesirability of substantial waste of time and effort if it becomes a

common practice to bring actions in two courts involving substantially the

same issues.

  • How far advanced the proceedings are in each court.
  • The law should strive against permitting multiplicity of proceedings in

relation to similar issues.

  • Generally balancing the advantages and disadvantages to each party.”

(footnotes omitted)

[39] The Deputy President observed that the approach in Sterling Pharmaceuticals Pty

Limited v The Boots Company (Australia) Pty Limited19 has been adopted in a number of

subsequent decisions but noted that the list of considerations set out in Sterling Pharmaceuticals

was not exhaustive and is not a strict checklist of preconditions.20

[40] In Teys Australia Beenleigh Pty Ltd v AMIEU21

, Bromberg J considered an application

to restrain the Commission from dealing with a dispute by arbitration where a party had filed

an originating application seeking a declaration in the Federal Court. The matter involved a

dispute over the interpretation of an enterprise agreement. Although the injunction was not

granted, his Honour accepted that “the substantive question necessarily arises for determination

in both this proceeding and the proceeding in the FWC”

22 and that the interests of justice

favoured the determination of the Federal Court proceedings before the arbitration proceeded

in the Commission.23

[41] In reaching this conclusion, his Honour identified six matters relevant to the exercise of

discretion which were helpfully summarised by Commissioner Lee in Metro Trains Melbourne

Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union24 as follows:

[2023] FWC 1136


  1. The Court’s specialist function is the final determination of the legal rights of the

parties under the Act;

  1. The Commission is an inferior tribunal and will be assisted by the reasons of the


  1. Complex legal issues were evident in the matter before his Honour which deserved

the attention of a superior Court;

  1. The issues raised are of general importance including that it may impact on other

similar enterprise agreements;

  1. If the substantive question continues to determination in private arbitration and at

the same time in the Court, there is the potential for the answers to be inconsistent.

If the Court first determines the issue, the potential for inconsistent results are

minimised. His Honour referred to this as the most important matter; and

  1. The potential for delay. In the matter before his Honour, the Commission had listed

the matter for hearing within days of the proceedings before his Honour.25

[42] Captain Lucas submitted that the test of what the interests of justice require and the six

matters identified by Bromberg J in Teys was the approach that I should take in relation to the

exercise of my discretion in this matter.

[43] While Qantas submitted that the non-exhaustive considerations identified in Sterling

Pharmaceuticals have been repeatedly applied by the Commission26, it submitted that both

Sterling Pharmaceuticals and Teys identify non-exhaustive lists of matters relevant to the

exercise of my discretion27 and that Teys does not materially depart from the matters identified

in Sterling Pharmaceuticals.


[44] The approach in Teys has been applied by the Federal Court in subsequent anti-suit

injunction applications where there are related proceedings before the Federal Court and the


[45] In Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical

and Services Union29

, Jagot J applied the approach in Teys in determining an application as to

whether proceedings in the Federal Court should be stayed pending the outcome of proceedings

in the Commission.30

[46] In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association31


Katzmann J applied the approach in Teys in determining an application as to whether

proceedings in the Commission should be stayed pending the outcome of proceedings in the

Federal Court.32

[47] As was the case in Teys, the dispute in this matter includes a dispute over the

interpretation of an enterprise agreement. Accordingly, and having regard to the authorities and

the submissions of the parties, I consider that the approach applied in Teys is the correct

approach to apply in this matter.



[69] There can be no question that the Federal Court has jurisdiction to determine the proper

construction of an enterprise agreement.37 There also can be no question that a decision of the

Federal Court in respect of a particular matter will be binding on the Commission to the extent

that the Commission is dealing with the same or substantively the same matter.

[2023] FWC 1136


[70] Notwithstanding that an enterprise agreement provides for the resolution of the disputes

by private arbitration, that does not limit or preclude the parties from invoking the jurisdiction

of the Federal Court.38

[71] In its originating claim, Qantas seeks a declaration that the AIPA contravened a civil

remedy provision by unreasonably withholding its agreement in contravention of clause 19.1.2

of the Agreement. Qantas also seeks orders relating to the payment of pecuniary penalties.

[72] Counsel for Captain Lucas foreshadowed that any residual matters in these proceedings

will form part of a cross-claim to be filed by the AIPA. The residual matters, namely questions

1 and 3 of the questions for arbitration, relate to the proper construction of clause 19.1.2 of the

Agreement and the interrelationship, if any, of clause 19.1.2 and clause 16.5. Counsel for

Captain Lucas has also stated that the AIPA will be seeking orders relating to the payment of

pecuniary penalties against Qantas.

[73] It is a matter of record that the AIPA has subsequent to the hearing of this application

filed its defence and cross claim. If AIPA’s cross-claim has sought declarations as

foreshadowed by Counsel for Captain Lucas, then the substantive issues to be resolved

necessarily arise for determination in both this proceeding and the Federal Court proceedings.

[74] In these circumstances, the considerations identified as matter 1 and matter 2 by

Bromberg J in Teys weigh in favour of granting the stay application.

[75] In relation to matter 3, I accept Qantas’ submission that it does not arise in these


[76] In relation to matter 4, while I accept the proceedings are not of general importance in

the manner that they were in Teys, I accept that similarly to the finding of Commissioner Lee

in Metro Trains, this issue is clearly important to the parties and its resolution could affect the

services Qantas provides and/or the seniority and remuneration of Qantas’ long haul pilot


[77] In relation to matter 5, there is clearly a risk of inconsistent answers being provided on

the same issues, namely the proper construction of the Agreement and whether the AIPA has

unreasonably withheld its agreement. In Teys, Bromberg J identified matter 5 as the most

important. I agree. Furthermore, that the parties to the Federal Court proceedings have both

sought (or foreshadowed seeking) orders relating to pecuniary penalties against the other leads

to a conclusion in my view that the risk of inconsistent answers weighs more heavily than might

otherwise be the case.

[78] In relation to Qantas’ submission that it has no intention for both matters to be

prosecuted at the same time, that is ultimately a matter for the Federal Court. In Aerocare Flight

Support, Jagot J refused an application that an originating application be stayed pending the

outcome of proceedings in the Commission. Furthermore, Her Honour held that if the

construction of an instrument is a central consideration in the broader controversy, a decision

of the Federal Court which provides determinative construction would assist the Commission

in discharging its functions.39

[2023] FWC 1136


[79] Qantas cited the decision in Energy Australia Yallourn in support of its submission that

the risk of inconsistent answers will not arise if these proceedings are determined first. In

Energy Australia Yallourn, the originating application was filed after the determination of the

dispute by a Full Bench of the Commission. His Honour, Bromberg J held that the Federal

Court lacked jurisdiction to entertain the originating application because the justiciable

controversy between the parties was extinguished by private arbitration conducted by the

Commission.40 The circumstances in Energy Australia Yallourn are clearly distinguishable

from the matter before me where the Commission is yet to resolve the dispute.41

[80] I also consider that Qantas and the AIPA have both sought (or foreshadowed seeking)

orders relating to pecuniary penalties against the other, and that Captain Lucas has raised a

jurisdictional objection to the Qantas Application distinguishes this matter from Clermont Coal

and One Tree.

[81] In relation to the matter 6, this is a matter which I have given careful consideration. The

proceedings in the Commission were commenced prior to the Federal Court proceedings. The

proceedings in the Commission are listed for hearing over three days commencing tomorrow. I

accept granting the stay application will result in some delay.

[82] However, while Qantas submitted that the uncertainty regarding the timing of the

Federal Court proceedings could lead to the matter not being heard before late 2024, since the

hearing of the application the following developments have occurred:

(i) The AIPA have filed its defence and a cross-claim;

(ii) The Federal Court has listed the Federal Court proceedings for case management

hearing on 1 June 2023.

[83] The listing of the case management on 1 June 2023 is well in advance of Qantas’

anticipated time-frame.

[84] In Teys, Bromberg J anticipated that the Court will be able to move quickly and in those

circumstances the delay would not be great.42 In Qantas v ALAEA, Katzmann J considered that

costs and delay can be mitigated “if the parties and their lawyers are sensible and conduct

themselves in accordance with their obligations under s.37N of the Federal Court of Australia

Act 1976 (Cth). Amongst other things, they should consider agreeing on the facts and if

necessary, serving notices to admits.”


[85] In relation to the issue of prejudice, I have taken into consideration the evidence of Mr

Alley. I note that Mr Alley states that it is important for operational reasons that the dispute be

resolved as soon as possible.44 It is apparent that evidence was given prior to the Federal Court

listing the case management hearing or I June 2023. While there is some uncertainty as to delay,

the case management hearing has been listed well in advance of Qantas’ anticipated time-frame.

Furthermore, the matters identified by Katzmann J in Qantas v ALAEA and the undertaking

provided by the AIPA regarding an application for expedition go towards mitigating delay.

[86] In relation to the preparation of evidence and submissions in the Commission

proceedings, I do not accept that much of that work will be wasted if an adjournment is granted

as the materials could be reprised and used for the Federal Court proceedings.

[2023] FWC 1136


[87] Finally, an issue arose in the course of the hearing as to whether any finding by the

Commission in relation to question 2 binds the AIPA in circumstances where the AIPA is not

a party to the dispute and cannot be a party to a dispute under the terms of the Agreement.45

The uncertainty of whether any determination by the Commission will be binding on the

Commission weighs in favour of the stay pending the determination of the Federal Court



[88] This application has raised difficult issues in which there are competing considerations.

[89] Having regard to the consideration set out above, I am satisfied that the application to

stay the proceedings in matters C2023/1371 and C2023/1755 pending the outcome of the

proceedings numbered NSD346/2023 in the Federal Court be granted. An order to that effect

will be issued with this decision.”



Lucas v Qantas Airways Limited [2023] FWC 1136 delivered 15 May 2023 per Ryan C